Opinion
No. 04-569612
February 27, 2007
MEMORANDUM OF DECISION
This is an appeal by the plaintiff, Frank Rourke, from a final decision of Peter H. O'Meara, Commissioner of the State of Connecticut Department of Mental Retardation (DMR), finding that the plaintiff was not eligible for DMR services.
This matter was precipitated by a request to DMR to complete an eligibility redetermination to see if the plaintiff, who had been a recipient of state services for 52 years, continued to meet the eligibility criteria set forth in Connecticut General Statutes § 1-1(g). DMR completed a redetermination of the plaintiff's eligibility for DMR programs and services and concluded that the plaintiff did not meet eligibility criteria established under Connecticut General Statutes § 1-1(g) for a finding of mental retardation. The plaintiff requested an eligibility hearing.
General Statutes § 1-1(g) provides; in part:
(a) . . . mental retardation means a significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.
(b) As used in subsection (a), "general intellectual functioning" means the results obtained by assessment with one or more of the individually administered general intelligence test developed for that purpose and standardized on a significantly adequate population and administered by a person or persons formally trained in test administration; "significantly subaverage" means an intelligence quotient more than two standard deviations below the mean for the test; "adaptive behavior" means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected for the individual's age and cultural group; and "developmental period" means the period of time between birth and the eighteenth birthday.
After the hearing, the hearing officer determined that the plaintiff was not eligible for DMR services, but recommended that DMR continue to offer the services and support currently provided to him so long as he continues to accept such services and support, that is that he be "grandfathered" as to DMR services and support. The defendant affirmed the decision of the hearing officer.
The hearing officer stated that the issue in the case is as follows:
Is Frank Rourke still eligible for DMR services? Mr. Rourke is 58 years old and lives with his wife in the Southeast part of the state. He has received services from the state since being placed in the Whitney Children's Center at age 7 when his parents were unable to adequately care for him. He has received services from the Office of Mental Retardation and then the Department of Mental Retardation since the age of 16 when he was `ordered' to OMR by the probate court. He lived at Mansfield Training School for four years before being transferred to Seaside Regional Center. He received a variety of residential services and supports from the local DMR region over the years.
The DMR representative testified that Mr. Rourke's IQ scores at age 7-9 and age 8-7 (during the developmental period) were 85 and 80 respectively and that, although they are beyond the developmental period, his IQ scores at ages 20 and 23-11 were 80 and 84 respectively and these are all above the criteria used to determine mental retardation.
The hearing officer summarized the evidence presented at the hearing as follows:
Prior to Mr. Rourke's admission to the Children's Center on 8/1/51, he was given a psychological examination on 5/25/51 (age 6-9). His score on the Stanford-Binet, Intelligence Scale Form M, was an IQ of 80, classifying him as `dull normal intelligence.' The examiner felt that he acted more like a two or three year old from a behavior and emotional standpoint and psychiatric consultation was recommended.
Mr. Rourke received two psychological examinations after placement at the center both of which indicated `dull normal intelligence.' On 11/18/52, he was evaluated at the Clifford Beers Clinic and he scored a full scale IQ of 85 on the Wechsler Intelligence Scale for Children. The second was from an examiner of the New Haven Board of Education on 3/16/53 and on the Stanford-Binet Intelligence Scale he scored an IQ of 80.
Frank was committed to the Office of Mental Retardation after an evaluation at the State Hospital in Middletown after having exhibiting (sic) behavior problems at the Children's Center. According to the New Haven District Office of the State Welfare Department in a letter dated 5/4/60, the evaluation indicated `the staff feel Frank is not psychotic. Based on the results of their diagnostic workup, including an electroencephalogram and psychological test (which indicated some organic damage and a maximum Full Scale IQ of 71) they feel Frank should be committed to Southbury Training School.'
A subsequent letter from OMR Deputy Commissioner to the Superintendent of Mansfield Training School dated 6/2/60 says that the report from the hospital states that `Frank obtained a verbal IQ of 71 on the Wechsler Intelligence Scale for Children. This places him in the border-line defective range. While he exhibits some potential for a higher level of functioning it is not felt that he could function at better than the high end of the borderline level.'
Mr. Rourke was placed at Mansfield Training School on July 15, 1960 at the age of 15 years, 11 months, one day after a probate hearing in Branford. Testing by the MTS psychology department on July 29, 1960 described him as `functioning at the borderline retarded level of measured intelligence.' The Vineland Social Maturity Scale at that time showed an age equivalent of 11 years, 4 months. The Stanford-Binet Intelligence Scale (1916) indicated an IQ of 67. His reading and spelling abilities were at the second grade level and his arithmetic skills were at the fourth grade level. The evaluation took place after Mr. Rourke had been confined to his room for almost a week after some incident that happened at the MTS hospital while he was undergoing admission examinations. The report states that he was extremely upset, sobbing uncontrollably and wringing his hands. The report further states: `When it seemed obvious that testing would be impossible because of Frank's crying, he suddenly said, `Wait. I'll try to be calm.' Within a minute, he had dried his eyes and was smiling brightly and says, `Alright. I'm ready now.'
When Mr. Rourke was transferred to Seaside Regional Center on January 13, 1964 (age 19), his IQ was listed as 67 with a mental age of 10-8.
The hearing officer has no information on the various residential and day services Mr. Rourke received from age 19 until the present time. According to Mr. Curran, Mr. Rourke currently receives monthly rent subsidy and almost daily case management services to help with entitlements, the landlord, the police, managing his money, obtaining his medications, counseling about his relationship with his wife, and counseling on his general behavior in the community.
Based upon the above evidence and the testimony of a DMR psychologist who reviewed the case record, the hearing officer found that, although the plaintiff's full scale IQ score was 67 when he was admitted to Mansfield Training School, all of his other tests during and after the developmental period were well above an IQ of 69 and determined that the plaintiff was not eligible for DMR services.
I
The initial issue presented in this appeal is whether the plaintiff is aggrieved. The defendant claims that the plaintiff is not aggrieved because the Commissioner determined that the plaintiff is eligible to continue to receive the services and support already provided by the department. Therefore, the defendant argues that the plaintiff has suffered no loss of eligibility for services he was receiving prior to the Commissioner's decision and the plaintiff's claims are hypothetical and for unspecified future loss.
In Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 665 (2006), the Supreme Court set forth the requirements for aggrievement as follows:
Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in a subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . . (Quotation marks omitted; emphasis supplied.)
Clearly, the plaintiff has a specific personal and legal interest in the Commissioner's decision. Counsel for the defendant stated to the court that if, in the future, the defendant should modify or terminate the benefits the plaintiff is presently receiving from DMR, the plaintiff would have no right to contest such modification or termination. Any such action would have an adverse and injurious effect on the interest of the plaintiff.
Accordingly, because of the possibility of such action, the court finds that the plaintiff is aggrieved.
II
A major issue argued by the parties in their briefs and oral arguments was whether one IQ score of under 70 requires the Commissioner to find a person eligible for mental retardation services. A general IQ below 70 is considered indicative of mental retardation. Christopher R. v. Commissioner of Mental Retardation, 277 Conn. 594, 599 (2006). The plaintiff argued that one IQ test of under 70 satisfies the mental retardation threshold under General Statutes § 1-1(g) and the defendant argued that there was substantial evidence in the record to support the defendant's findings that the plaintiff did not meet the criteria set forth in General Statutes § 1-1(g) and that the defendant's decision to discount the plaintiff's one IQ result under 70 was proper.
The issue of one IQ score under 70 as being determinative of eligibility for mental retardation services was resolved subsequent to the oral arguments in this case in Christopher R. v. Commissioner of Mental Retardation, Id. Christopher R. involved facts analogous to the present case in that the applicant had one IQ test under 70 out of several such tests. The trial court held that the Commissioner did not have discretion to consider evidence other than the one IQ score under 70 in determining eligibility for benefits and sustained the plaintiff's appeal of the denial by the Commissioner of mental retardation benefits for the plaintiff.
The Supreme Court stated, at page 609:
Although there is no legislative history that directly bears on this issue, it is noteworthy that comments during the debate on the 1982 bill adding subsection (b) to § 1-1g indicate that the legislature intended to clarify and narrow the definition of mental retardation to ensure that persons with borderline normal intelligence were not classified as mentally retarded, to prevent inappropriate commitment of such persons to mental retardation facilities and to ensure that limited administrative resources were devoted to those most in need. Interpreting § 1-1g to allow consideration of all intelligence tests that meet the statutory criteria best furthers those purposes. Moreover, mindful that this definition applies to other statutes, we are persuaded that this interpretation reasonably may be applied in those contexts as well. Accordingly, we conclude that the defendant did not exceed his authority when considering all available general intelligence tests. (Citations omitted.)
The Supreme Court further stated, at page 611:
We, therefore, consider whether, when faced with conflicting indications of the plaintiff's general intellectual functioning, the defendant exceeded his authority by considering other evidence. We conclude that he did not.
Faced with such conflicting scores, the defendant necessarily was required to make a determination as to whether the plaintiff's general intellectual functioning was in fact significantly subaverage. Nothing in the statutes or regulations limits the defendant's discretion in this regard, and the defendant is especially qualified to make such a determination. See General Statutes § 17a-210 (prescribing defendant's qualifications and duties); General Statutes § 17a-212 (conferring on defendant authority to determine criteria for eligibility). Indeed, we generally defer to an agency with expertise in matters requiring such a technical, case-by-case determination.
Based on the foregoing, the court finds that the Commissioner was not required to find the plaintiff eligible for mental retardation services because he scored below 70 on one IQ test.
III
The plaintiff argues that DMR should be equitably estopped from declaring that the plaintiff is no longer eligible for mental retardation benefits, specifically where no change in factual circumstances has occurred. In response, the defendant argues that estoppel cannot be invoked against DMR in the present case because the plaintiff has not suffered a "substantial loss" as a result of the defendant's action.
"[A]s a general rule, estoppel may not be invoked against a public agency in the exercise of its governmental functions . . . [A]n exception to this general rule is made where the party claiming estoppel would be subjected to a substantial loss if the public agency were permitted to negate the acts of its agents." (Citations omitted.) Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 146-47 (1987). "[I]n order for a court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts had existed and to act on that belief, (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents." Cortese v. Planning Zoning Board of Appeals, 274 Conn. 411, 418 (2005). "[E]stoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency." Kimberly-Clark Corp. v. Dubno, supra, 204 Conn. 148.
In support of his estoppel argument, the plaintiff states the following. DMR and the State Welfare Commissioner committed the plaintiff to institutional living from age six. The plaintiff has lived and developed as a person under the care, guidance and services of the State of Connecticut for over 54 years. These agencies considered the plaintiff to be mentally retarded. The plaintiff changed his position or otherwise relied to his detriment upon the defendant's representations which thereby denied him of other placement opportunities (i.e., foster home, adoption). Given the age at which he entered into the care of the state, the plaintiff not only lacked the knowledge to know the true state of the facts, but he had no convenient means of acquiring that knowledge to make any decision. The plaintiff presently receives a monthly stipend for his rent and receives the benefits of case management services on a daily basis. Without rent benefits, the plaintiff could lose his living accommodations. Without a case manager, the plaintiff will be unable to consult with a professional to assist him in his daily lifetime struggles. This loss would be substantial and devastating to the plaintiff. Given the unique circumstances of his situation, the plaintiff argues that it would be highly inequitable and oppressive not to estop DMR from now terminating his eligibility to receive state services and support.
In Green v. State Health Benefits Commission, 373 N.J.Super. 408, 861 A.2d 867 (2004), the plaintiffs appealed a final determination from the State Health Benefits Commission that the plaintiff wife's home health aide services were not covered under the plaintiffs' state-provided health benefits plan. In Green, the plaintiff wife was diagnosed with multiple sclerosis. It was initially determined that a home health aide did not qualify as an eligible provider under the plaintiffs' health care plan; however, under an exception for persons suffering a catastrophic illness, the home health aide was considered eligible for coverage. The plan paid for the plaintiff wife's home health care for five years. Subsequently, the plaintiffs were informed by the new claims administrator that the home health care services would no longer be eligible for benefits under the plan. The plaintiffs appealed the denial of benefits. An initial administrative decision was issued denying the plaintiffs' appeal. The plaintiffs appealed the initial decision and the State Health Benefits Commission denied their appeal by a final administrative determination.
The Appellate Court concluded that the agency's decision was "arbitrary and capricious because it fails to address fundamental legal and factual issues . . . [A]fter more than five years of continuously paying for the home health aide, [the new claims administrator] informed [the plaintiff] that Services for Home Health care . . . will no longer be eligible for benefits under the . . . plan as these services . . . no longer meet the guidelines for coverage. Implicit in this statement is a conclusion that the services did, at one time in the past, meet the coverage guidelines and were eligible for benefits." (Internal quotation marks omitted.) Id., 415. The court further held that it was "incumbent upon the [State Health Benefits Commission] to explain, in this case, why an exception was permitted in the past and what factual circumstances, if any, have changed so as to make that exception no longer applicable to [the plaintiff wife's] situation. The complete failure to do so renders the agency's decision arbitrary and capricious . . . The complete absence of any explanation as to why the claims were paid for five years, coupled with the absence of any substantive discussion of changes in either [State Health Benefits Commission] policy or in [the plaintiff's] factual circumstances, is troubling." Id., 417-18. The plan had been paying for the home health aide service for five years and the plaintiff had come to rely on it for her wellbeing. Id., 419.
The Green case provides a very strong factual basis for maintaining benefits in the present case. The plaintiff has been receiving state benefits for over 54 years. No factual circumstances have changed so as to make the plaintiff now ineligible for mental retardation benefits. It would be highly inequitable and oppressive not to estop DMR from now terminating the plaintiff's eligibility to receive state services and support.
For the reasons stated above, the court sustains the plaintiff's appeal and reverses the decision of the Commissioner that the plaintiff is not eligible for DMR benefits.